Time to repeal ouster clauses

Reform needed: If Dr Mahathir 2.0 is committed to returning the judiciary to its pre-1988 days of independence and dignity, the Government must restore Article 121(1) and repeal ouster clauses.- Bloomberg

OUSTER clauses have no place in a democracy.

They are the provisions that sound like this, “You have a grievance? Too bad, there SHALL BE NO judicial review” or “Sure you can appeal, just do it in six weeks; BUT the Minister’s decision is final”.

Basically, they strip courts of their supervisory power to scrutinise Executive actions and decisions.

How are judges, who are supposed to check the excesses of the Executive, to do their job if Parliament keeps passing clauses which ‘oust’ or take away a judge’s power to hear a grievance?

And should Parliament take away your fundamental right to access to justice in a court of law?

Ouster clauses do exist in many jurisdictions, not just in Bolehland. Their purpose ostensibly is to promote finality to executive acts and decisions and not jam up the administration in running a country.

But ouster clauses pose a danger...if a strong and feared man comes to power, if his party has the majority in Parliament and if the Attorney General and Public Prosecutor are the same person...sound familiar?

R.S. Milne and Diane K. Mauzy, in their 1999 book Malaysian Politics under Mahathir, note that Malaysians were turning to the court in the 1980s for redress as a result of expanding state control over political and civil rights.

They list several high profile cases in the High Court that went against the government. It allowed a challenge against an expulsion order against a foreign journalist with the Asian Wall Street Journal; a citizenship case; upheld challenge by Aliran Monthly against publishing in Malay; allowed an injunction against United Engineers Malaysia; and granted a writ of habeas corpus to a detainee under the Internal Security Act.

The relevant Prime Minister at that time was Tun Dr Mahathir Mohamad 1.0.

Milne and Mauzy write that Dr Mahathir seemed to “equate democracy with ‘majority rule’”, viewed the PM’s power as “mandated through elections”, and “interpreted the decisions of the courts as unwarranted infringements of executive power” and “accused the courts of trying to usurp power and run the country”.

The worse was yet to come in 1988.

Emeritus Professor Datuk Dr Shad Saleem Faruqi, who is Tunku Abdul Rahman Professor of Law at Universiti Malaya, wrote in his column in this newspaper on April 16, 2008, that the inherent power for judicial review, among other measures, was “...part of our castle and fortress against arbitrariness in government” when Malaya achieved independence.

It remained this way until June 10, 1988, when in “an incredibly misguided act, Parliament tried to weaken this fortress,” he wrote.

Before 1988, Article 121(1) of the Federal Constitution vested “the judicial power of the Federation” in the courts. With the amendment, the reference to judicial power was deleted and became “shall have such jurisdiction and powers as may be conferred by or under federal law”.

This lead to a division in the judiciary.

“Some have accepted their truncated role as mere agents of Parliament and not as independent pillars of the Constitution. Others insist that their review powers are intact. There is division within the ranks,” noted Dr Shad.

It’s only last year in the land acquisition appeal Semenyih Jaya Sdn Bhd and Anor v Pentadbir Tanah Daerah Hulu Langat and re Indira Gandhi (jurisdiction of the civil court in a unilateral conversion of children) cases this year that the Federal Court “reclaimed” its judicial power.

Several former Malaysia Bar presidents interviewed all want the removal of ouster clauses and the restoration of Article 121(1) to its former glory.

“The Bar has taken the position that ouster clauses breach the fundamental structures of government. There must be judicial scrutiny. You cannot restrict the powers of the judiciary. Aside from resolving disputes between parties in the private sector, the judiciary acts as a check and balance against executive excess,’ says Christopher Leong.

“Even in cases that affect national security, safeguards can be put in place. For example, in a trial involving suspected terrorists, you can’t have the usual open hearing because of sensitive information that could expose intelligence sources.

“There should be no ouster clauses, even from the mundane to public order and national security, and yet our laws are littered with them,” adds Leong.

There are over 40 pieces of Parliament-made laws ousting judicial power to review decisions of Ministers and public officials, although they have nothing to do with public order or security. (See full list below)

Some of the older ones are the Atomic Energy Licensing Act 1984, Educational Institutions (Discipline) Act 1976, Fisheries Act 1985 and Occupational Safety and Health Act 1994.

The ones in the new millennium include the Water Services Industry Act 2006, Witness Protection Act 2009, Strategic Trade Act 2010, Employment Insurance System Act 2017 and Prevention of Terrorism Act 2015 (POTA).

The public, even if it disagrees with the notion of an ouster clause, can appreciate the importance of national security at times. But how do the authorities explain these mind boggling ones:

> Section 34(4) of Dental Act 1971. Does a dental surgeon, stripped of his practising certificate or registration, have less rights than a lawyer struck off the Advocates and Solicitors Roll?

> Section 37 of Widows and Orphans Pension Act 1915 (revised in 2007), which denies a widow and children the right to challenge the arbitrary decision of the Chief Secretary to the Government makes little sense today.

> Section 31(a) of Legal Aid Act 1971 denies a person who has been refused legal aid the right to challenge the refusal beyond the Director-General of the Government’s Legal Aid Bureau. If a genuine applicant has money to hire a lawyer to file for judicial review, would he or she have applied for legal aid in the first place?

Like Leong, fellow former presidents Ragunath Kesavan and Steven Thiru also say that ouster clauses should go.

They are agreed that these especially MUST go: Section 18C in the Societies Act; Section 13A in the Printing Presses and Publications Act; Section 59A of the Immigration Act; and Section 19(1) of POTA,

In addition to the above, retired Court of Appeal judge Datuk Seri Hishamudin Yunus would like Section 37 of the Widows and Orphans Pension Act and Section 34(4) of the Dental Act removed also.

“Even partial ouster clauses must be done away with as well,” he adds.

In an interview, Tan Sri Abu Talib Othman, who was Attorney General from 1980-1993, says the Institutional Reforms Committee (IRC) that has just been set up by the Pakatan Harapan government is probably already looking into removing ouster clauses.

“I won’t deny that I was responsible for drafting most of them, even Article 121(1) which has been interpreted by some as removing judicial power,” he acknowledges, but he declines to say more when asked whether Dr Mahathir 2.0 or the IRC have met him.

Abu Talib, who became a strong proponent against ouster clauses when he was appointed chairman of Suhakam, lamented in 2008: “Where else is the public supposed to go to seek justice for the wrong done to them? We have pointed this out to the government. Unfortunately, we didn’t get a response.”

In keeping with the development of human rights and access to justice arguments globally, he cautioned in 2010: “The law must change to suit the changing circumstances and times.

“You can’t have any form of oppressive laws...If this is not addressed, it may lead to anarchy.”

Malaysians were promised several reforms back in 2004 and 2008 but little was accomplished.

If Dr Mahathir 2.0 is committed to returning the judiciary to its pre-1988 days of independence and dignity, the Government must restore Article 121(1) and repeal ouster clauses.